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01.09.2012 | Roman Kuybida

Language Law creates conditions for violation of constitutional rights

   

 

On 3 July 2012 the Verkhovna Rada, Ukraine’s Parliament, adopted the Law on the Principles of State Language Policy [hereafter “the Law”].

A number of civic organizations called on the Speaker of Parliament and the President to not sign the law since both the procedure by which it had been adopted and its content were in breach of the Constitution.

However after parliament failed to support resolutions to either vote on the bill again, or revoke it, the Law was signed and on 10 August 2012 it came into force.

In the following, particular attention will be given to conceptual problems contained in the provisions of the Law.

Provisions which clash with the constitutional status of the State language

In its Judgement on 14 December 1999, the Constitutional Court stated as follows:

“… by State (official) language is understood the language which the State has given the status of mandatory form of communication in public spheres of life… The public spheres in which the State language is used encompass first and foremost the spheres in which the legislative, executive and judicial branches of power, other authorities and bodies of local self-government   carry out their powers (the language of the work place, acts, documentation and paperwork; the language used between different bodies, etc”.

However the Law on the Principles of State Language Policy contains provisions making it possible for the State language to not be used as the mandatory form of communication in public spheres of life, including in court proceedings, official paperwork by state bodies, bodies of local self-government   and between public authorities at all levels.

According to Article 14 § 1 the courts may conduct proceedings in the regional language(s). Yet the Constitutional Court interpretation of Article 10 of the Constitution states that the language of court proceedings is the State language. (Judgement regarding the State language from 23 April 2008, no. 8/2008). This does not prevent parties to the proceedings using their own language, where needed with the use of an interpreter.

The Constitutional Court also conclude that local authorities of the Crimea and bodies of local self-government  can use Russian and other languages of national minorities within the boundaries and according to the procedure stipulated by Ukrainian laws only together with the State language (Judgement regarding the use of the Ukrainian language).

Yet Article 11 § 1 of the Law states that “within the territory of the regional language(s) the regional language(s) may be used in the work, paperwork and documentation of local authorities and bodies of local self-government, In the correspondence of these bodies with authorities of a higher level it is permitted to use this regional language (these regional languages).”  This is thus without simultaneous use of the State language in breach of the Constitution and the Constitutional Court.

According to the Constitutional Court Judgement regarding the use of the Ukrainian language, “the concept of State language is a component part of the constitutional concept of constitutional order which is broader in scope and content …. The right to determine and change the constitutional order in Ukraine is held solely by the people”. In other words, the narrowing by the Law on the Principles of State Language Policy of the constitutional status of the State language constitutes the usurping by the State and specific MPs of the exclusive right of the people to change the constitutional order in Ukraine.

Infringement of the right to know ones rights and duties

The Law attempts to change the concept of “State language” since it creates conditions whereby knowledge of Ukrainian will not be needed. However it is hard to imagine a country in which it is not necessary to know the State language – as a language which unites all the country’s citizens and is a form of inter-ethnic communication. As stated in the Assessment and Recommendations of the OSCE High Commissioner on National Minorities on the Draft Law on “Languages in Ukraine” (No. 1015-3) “knowledge of the State language is also beneficial to persons belonging to national minorities. Having a command of the State language increases the opportunities for effective participation in society at all levels….All members of society, including persons belonging to national minorities, may be expected to use the State language in certain communicative situations in the public domain, as specified by law. To put it differently, there is no right of persons belonging to national minorities never to be expected to use the State language” (13).

Creation of conditions whereby a person does not need to know the State language as the language of inter-ethnic communication not only clashes with this position regarding the uniting role of the State language, but is also a total contradiction of the principle in Article 5 § 9.2 of the Law according to which each member of society freely uses several languages unlike the situation where certain language groups only know their own languages.

The Constitution guarantees each person the right to know their rights and duties. “Laws and other normative legal acts that determine the rights and duties of citizens shall be brought to the notice of the population by the procedure established by law.

Laws and other normative legal acts that determine the rights and duties of citizens, but that are not brought to the notice of the population by the procedure established by law, are not in force. (Article 57).

Article 10 § 1 of the Law has established the languages in which acts “of higher State authorities” must be published: they “are adopted in the State language and officially published in the State, Russian and other regional or minority languages”. This provision in modern conditions is not implemented and cannot be due to the lack of sufficient staffing and financial resources. Yet it gives the legal grounds for members of national minorities to demand official publication of any law, normative legal subordinate act from the President, Cabinet of Ministers etc in the language of the relevant minority (according to some data there are almost 80 such languages). And, if they are not published in such a language, to assert, on the basis of Article 57 of the Constitution, the lack of any obligation to adhere to this or that law or other act.

Article 10 § 2 of the Law envisages that within the territory where the regional language or minority language is widespread … acts of local authorities and bodies of local self-government   are adopted in the State language or in this regional or minority language (languages) and officially published in these languages. Such wording also makes it possible for public authorities to avoid using the State language when adopting acts and bringing them to the notice of addressees. This poses impediments for observance of such acts by people who as citizens of Ukraine know the State language, but do not know the relevant regional or minority language. It also infringes the right to appeal in court against such acts since the court may be on territory where the language in which the act is written is not a regional language.

Interference in the rights of civic associations and private individuals

A number of provisions of the Law are an unwarranted intrusion into the activities of civic associations, as well as of private individuals. For example, within the territory where the regional language or minority language is widespread, it is compulsory for civic associations, organizations, enterprises as well as people engaged in business enterprise and other individuals to take measures regarding the development, use and protection of the regional or minority language (Article 7 § 7). Thus civic organizations and private individuals are being given positive duties regarding the development, use and even protection of languages, even when this is not the purpose of their activities.

Article 11 § 4 of the Law stipulates the working language for conferences, meetings and other official gatherings held not only by public authorities or bodies of local self-government  , but also by civic organizations. As well as the fact that this provision is contained in an article entitled “Working language, paperwork and documentation of public authorities and bodies of local self-government “, it is also an example of State intrusion in freedom of association.

Article 18 § 3 of the Law states that the internal regulations of enterprises, institutions and organizations of any form of ownership may not adopt any provisions which exclude or limited members of staff from communicating in the State language, Russian or any regional or minority languages. In the view of the OSCE High Commissioner on Minority Languages “the scope of application of this provision is too far-reaching in that it for example prohibits a company or a not-for-profit organization from adopting any internal rules on their working languages. It is doubtful whether a legitimate public interest exists that justifies imposing such far-reaching restrictions” (Item 51 of the Assessment and Recommendations of the OSCE High Commissioner on National Minorities on the Draft Law on “Languages in Ukraine” (No. 1015-3)

Infringement of equal rights of access to the civil service

According to Article 11 § 2 of the Law, the guarantee that court proceedings will be conducted in the regional language should be taken into consideration in the selection of judges. Yet the Law on the Judicial System and Status of Judges does not envisage checking that candidates for the post of judge know regional languages, and the criteria for recommending a person for the post of judge in a specific court is the score gained in a qualifying exam. Such discrepancies in the laws arouse uncertainty with regard to the criteria for selection of judges.

Through amendments imposed by the Law on the Principles of State Language Policy to the Laws on Local State Administrations and On Service in Bodies of Local Self-Government, the duty is imposed on applicants for jobs in bodies of local self-government not only to know the State language, but also regional languages, while for applicants to a post in a local State Administration, they must also know the languages of national minorities.

On territory with a language stipulated as regional or where national minorities live, this will pose an impediment for entering the civil service or work in bodies of local self-government for people who know the State language but do not speak the regional or minority languages.

Considering that it is impossible to guarantee staff who know the relevant languages in all spheres of activity of local State Administrations and bodies of local self-government  , it is extremely probable that the requirements on knowing other languages aside from the State language will be applied selectively.

Yet Article 38 § 2 of the Constitution stipulates that citizens enjoy the equal right of access to the civil service and to service in bodies of local self-government.

Violation of the rights of the Ukrainian-speaking population

The State has rejected regulation of the use of the State language in the cinema industry; television, radio broadcasting, the printed press; book publishing etc.

As the OSCE High Commissioner on Minority Languages rightly notes, “Market considerations in combination with the situation of asymmetrical bilingualism in Ukraine will promote the import and production of Russian-language programmes, films and publications, as these will be considerably cheaper to produce or import. Moreover they are more likely to reach a wider audience not only of the Russian-speaking community, but also of the majority of Ukrainian speakers who are fluent in Russian. Such deregulation would be unique as most OSCE participating states regulate in order to ensure the adequate presence of the State language in the media, in particular, in the broadcast media. This applies not only to “smaller” languages such as Dutch or the Scandinavian languages, but also to larger ones such as French (Item 44 of the Assessment and Recommendations of the OSCE High Commissioner on National Minorities on the Draft Law on “Languages in Ukraine” (No. 1015-3)

Indeed, producers of such material will have an interest in creating the product primarily in Russian since this gives them the opportunity without extra expense of not only satisfying the needs of the Ukrainian market, but also entering the Russian market. However the language interests of Ukrainian language consumers will be impinged.

Clearly with such market conditions, the Ukrainian government needs to stimulate production of information material, the creation and circulation of cultural and artistic works primarily in the Ukrainian language, as well as in those languages of national minorities which are at risk of dying out and need protection from the State.

Infringements of national minority interests with respect to development in Ukrainian society

Article 20 of the Law on the Principles of State Language Policy declares citizens’ right to education in regional or minority languages in State and municipal educational institutions with tuition in all subjects except Ukrainian Language and Literature being in the language of the regional minority.

This approach will complicate integration of young generations of national minorities in multilingual Ukrainian society since they won’t have sufficient knowledge of the State language as the language of inter-ethnic communication.

According to the OSCE High Commissioner on Minority Languages, this “is likely to lead to a predominantly monolingual education system in minority-language schools which is unlikely to offer adequate opportunities for children from a minority background to develop sufficient State language skills. It is doubtful that classes in Ukrainian language and literature alone will provide these opportunities, particularly in a region and an environment where the minority language is dominant and where there is little incentive to study and use the State language in the employment sector or for access to higher education. Finally, such an approach runs counter to the object and purpose of both the FCNM and the ECRML (41 the Assessment and Recommendations of the OSCE High Commissioner on National Minorities on the Draft Law on “Languages in Ukraine” (No. 1015-3)

The obligation for all students of general secondary schools to study one regional or minority language, as well as the State language is also dubious, especially if these students are from another national minority or are not members of a national minority (Article 20 § 7 of the Law). This obligation should clearly be changed to the right to choose to study a regional or minority language or other foreign language.

Infringements of the principle of legal clarity

The Law on the Principles of State Language Policy is of poor quality which will lead to many legal disputes and place an extra burden on the legal system. A fair number of the provisions of the Law do not make it possible to regulate ones behaviour and envisage the consequences of such behaviour.

For example, Article 8 § 1 of the Law defines the features of the offence which can result in criminal liability – public denigration or insult, deliberate distortion of the State language, a regional or minority language in official documents and texts leading to the creation of impediments, restrictions in the use of them, violation of human rights, as well as incitement to enmity on the grounds of language. At the same time, Article 3 § 3 of the Criminal Code establishes that criminality of an action is defined only by that Code. Furthermore, lack of clarity in the wording “public denigration or insult” can be used by the government for arbitrary intrusion in freedom of expression of views.

Most of the definitions in Article 1 of the Law do not comply with the rules of legal technique. For example, the State language is defined as “the language set down in legislation, the use of which is mandatory in bodies of state governance and paperwork”  However it is impossible to ascertain what a “body of state governance and paperwork” is since there is not only no use of such a term in legislation, but it is nonsensical.

A region is defined as “a particular self-governing administrative-territorial unit which can be made up of the Autonomous Republic of the Crimea, an oblast, rajon, city, settlement, village”.  The absurdity of such a definition lies in the fact that according to the Code of Administrative Offences (Article 186) the term used for “self-governing” is in fact deemed as arbitrary and in breach of legally established order.  This latter definition is also found in the Criminal Code (Article 356).

The Law’s flawed nature is also seen in the fact that it contains 17 references to Article 8 § 3 of this Law as defining the conditions for the use of a regional language. The conditions are in fact given in Article 7 § 3.

Article 24 § 1 envisages that “each person is guaranteed the right to use media information material in any language. This right with respect for the principle of independence, autonomy of the media is assured through the creation of conditions for the circulation of information in various languages and free choice of the language of use”. With such wording, each person can demand publication, for example, of official publications of public bodies in any language – Italian, Arabic, Chinese, Krymchak, etc.

The Law contains many points which clash with current legislation. Amendments are made to laws which are no longer in force.

The provisions of the Law cannot be implemented with regard to national minority languages aside from Russian

Most of the Law’s provisions cannot be implemented since the Law firstly requires huge expenditure from the State budget which is impossible for Ukraine’s economy and taxpayers’ money, and is incommensurate with the aims of the Law (we are talking of billions or tens of billions of UAH).  It secondly requires a huge number of members of staff speaking the languages of national minorities in public bodies, educational institutions, the media etc.  Ukraine simply doesn’t have that number of such people.

Huge expenditure would, for example, be demanded by the following provisions:

1)     translation by the Office of the Verkhovna Rada of speakers into the State language during all sessions of the Verkhovna Rada, its committees and commissions (Article 9);

2)     acts of top bodies of power shall be officially published in the State, Russian and other regional or minority languages (Article 10 § 1);

3)     acts of local authorities and bodies of local self-government   on territory where a regional or minority language is widespread are officially published in the regional or minority language (Article 10 § 2);

4)     on territory where a regional language (languages) is widespread, the regional language can be used in work, paperwork and documentation of local authorities and bodies of local self-government . It is permitted to use the regional language in correspondence between these bodies and bodies at a higher level (Article 11 § 1);

5)     public officials and civil servants must speak the State language, using it with visitors, while within the boundaries of territory where a regional language(s) is widespread, they should use the regional language with visitors who speak the latter (Article 11 § 3);

6)     People who use the regional language(s) are assured the right to submit all written and verbal applications and receive responses to them in the particular regional language(s) (Article 11 § 3);

7)     Where necessary translating / interpreting is provided of the work of conferences, meetings and other official gatherings which are held by public authorities and bodies of local self-government  , civic organizations with the use of the regional language (Article 11 § 4);

8)     The texts of official announcements, reports on territory where a regional language (languages) is widespread, at the decision of the local council can be also circulated in translations into this regional language(s) or Russian (Article 11 § 5);

9)     The names of public authorities and bodies of local self-government, civic associations, enterprises, institutions and organizations, the words on their stamps, etc may at the decision of the local council be given in the State and the regional language(s) (Article 11 § 6);

10)  Documentation of local referendums shall at the decision of the local council be prepared in the regional language(s); (Article 12  § 1);

11) Electoral voting papers for a whole range of elections may, at the decision of the territorial electoral commission be prepared in the regional language(s); (Article 12  § 2);

12)   on territory where a regional language (languages) is widespread, voting papers for national or local referendums may also, at the decision of the local council, be given in the State language with a translation into this regional language(s) (Article 12  § 3);

13)  Article 12  §  4 envisages that all information posters relating to various elections should be given also in the regional language(s) at the request of the particular participant in the elections;

14)  Article 13 § 1 envisages all ID, etc, being in both the State language and the regional minority language, should the person involved choose;

15)   Article 13 § 2 envisages the same for educational documents on the person’s application;

16)  on territory where a regional language (languages) is widespread, the State guarantees the possibility of having court proceedings in that regional language (s) (Article 14 § 2);

17)  on territory where a regional language (languages) is widespread, written procedural documents, evidence, may be submitted to the court in the regional language(s) with translation, if necessary, into the state language without additional cost to the parties to the proceedings (Article 14 § 3);

18)  on territory where a regional language (languages) is widespread, translation services in the court where needed do not involve the parties in extra cost (Article 14 § 4);

19)   Together with the State language during a detective inquiry, criminal investigation or Prosecutor’s check, a regional or minority language may be used, or other languages (Article 15);

20) State and municipal educational establishments shall, according to established procedure, create separate classes, groups, in which tuition is carried  out in another language than in the educational establishment as a whole (Article 20 § 4);

21)  The study of one regional or minority language is provided in all general secondary schools (Article 20 § 7);

22) At the wish of the person involved, external assessment tests are provided in translation into the regional or minority language (Article 20 § 7);

23)  The state provides training for teachers in educational institutions with tuition in regional or minority languages and provides the methodological back-up for such training (Article 20 § 11);

24)  educational establishments may create classes, groups with tuition in foreign languages (Article 20  § 12);

25)  Official information about the activities of public authorities and bodies of local self-government   shall be circulated on territory where a regional language (languages) is widespread in the regional language(s).  If this language differs from the State language the disseminator of information must ensure an authentic translation into the State language (Article 24 § 2);

26)  All printed material for official use (forms, receipts etc) of various authorities, bodies of local self-government  , state enterprises, institutions and organizations on territory where a regional language (languages) is widespread may, at the decision of the local council, be issued in this regional language(s) also (Article 24 § 7);

27)  Labelling of goods, instructions for their use etc are provided in both the State language and regional or minority language (Article 26 § 3);

28)  Place names outside Ukraine are given in the State language with transcription from the language of the original (this would mean that the name of the Russian capital would look like Maskva; the capital of the UK – Landon, etc.

The Law will inevitably lead to a significant increase in expenditure by territorial communities with this being possible only if the financial basis of local self-government is strengthened. The Law does not envisage the relevant mechanisms, and therefore implementation of the provisions would be capable of depriving local self-government of the capacity to fulfil its basic functions and provide services to the public.

The provisions of the Law which can clearly not be carried out will give rise to a new artificially created wave of lawsuits as was seen with lawsuits over non-enforcement of the State’s obligations with respect to social defence. This could in turn lead to the non-implementation of rulings from national courts, this being a violation of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.

Recommendations to the Human Rights Ombudsperson

The Law on the Principles of State Language Policy has created a large number of problems both with respect to national security, and in the field of human and civil rights.

In order to remove rights violations, caused by the entry into force of this Law, the Human Rights Ombudsperson has the jurisdiction to take the following measures:

1)  to turn to the Verkhovna Rada * proposing amendments to the said Law as well as other laws, regarding:

-  replacement of provisions which make it possible for local authorities and bodies of local self-government  to use the regional languages instead of the State language, to provisions regarding the possibility of these local authorities and bodies of local self-government using the regional language together with the State language;

-  removal of provisions which interfere with the rights of civic organizations and private individuals;

-  removal of provisions which violate the equal rights of access to the public service;

-  removal of provisions which infringe the interests of national minorities regarding development in Ukrainian society;

-  improvement or removal of provisions which create a lack of legal clarity;

-  regulation of the use of the State language in the film industry, television, radio and the print press; stimulation of preparation of information material, creation and circulation of cultural and artistic works primarily in Ukrainian; as well as in those minority languages which are in danger of dying out and need protection from the State;

-  introduction of provisions which demand funding from the State and local budgets only after the scope and mechanism for such funding are defined.

-  removal of provisions which are impossible to implement due to lack of finances and human resources.

2)  should the Verkhovna Rada of the sixth convocation not introduce the necessary amendments to the Law on the Principles of State Language Policy, to turn to the Constitutional Court with a constitutional submission asking for an official interpretation of the provisions of the Law which are dubious from the point of view of constitutional demands or which do not meet the requirements of legal clarity;

3)  carry out monitoring, including with the participation of civic organizations of observance of human rights and civil liberties in implementing the Law on the Principles of State Language Policy and publish the results in the annual report on observance of human rights and civil liberties in Ukraine.

*  Such proposals could also be addressed to the Working Group created on the basis of the Presidential Instruction “On improvement of legislative back-up for the use of languages in Ukraine” if by the time the proposals are submitted, this Working Group has not concluded its work.

 

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